JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 27, 1998

• 0910

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Colleagues, we had better start. Eleni Bakopanos just had a recommendation. In view of the fact that we have a vote at 10.30 a.m., she's suggesting that we take a quick look at the victims' rights report—we have the agreement in principle—and get it passed. And I know what she's thinking. If we can pass it today, I can table it today, and that'll get it on the agenda for the meeting of the federal, provincial and territorial ministers on Friday.

In order to do that, though, we have to inconvenience a lot of people by going in camera for a few minutes, which means clearing the room. I don't usually do that to guests, but I think the witnesses we have here understand the importance of trying to do that.

Do we have agreement on that?

Some hon. members: Agreed.

The Chair: All right, then, we'll go in camera. The staff can stay.

[Editor's Note: Proceedings continue in camera]

• 0911

• 0919

[Editor's Note: Public proceedings resume]

The Chair: As we are bringing our witnesses in, we are not in camera any more and I want to say this: I don't have a vast experience here, but this is one of the greatest experiences I've had in terms of working together and moving things along, and I want to thank you all for that.

But I think you all know—including you, Michel, and Richard, who has been very helpful as well—that the people who really moved this along, in addition to our staff, were Phil and Marilyn.

Some hon. members: Hear, hear.

The Chair: They really wrote a fabulous report. We do appreciate that.

Thank you.

I think we should give the first copy to Steve Sullivan.

A voice: Yes.

The Chair: If anybody wants to leak this report, it's okay.

An hon. member: It's already been leaked.

Some hon. members: Oh, oh.

• 0920

An hon. member: Really?

An hon. member: You didn't write “confidential” on it.

The Chair: I know. It wasn't Michel Bellehumeur who leaked it, I know that.

Some hon. members: Oh, oh.

The Chair: Because when they said they had the minority report, Michel hadn't even written it yet.

I'm sorry that we asked you to leave the room, ladies and gentlemen, but you'll be happy to know that the report on the role of victims in the criminal justice system has been passed and that it will be tabled as soon as possible in the House and made available for public consumption—with a minority report.

We're now dealing with Bill C-51, an act to amend the Criminal Code, the Controlled Drugs and Substances Act and the Corrections and Conditional Release Act.

Our witnesses from the Department of Justice are: Yvan Roy, senior general counsel, criminal law policy section; Chris Ram, counsel, criminal law policy section; and Jodie van Dieen, counsel, criminal law policy section.

Welcome. We're a little out of order. I know that we usually have the minister here first on these matters, but we're trying to barrel through our agenda so we can get to impaired driving as soon as possible.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Madam Chair—

The Chair: Yes?

Ms. Eleni Bakopanos: —before we begin, I would like to just advise the committee that we are recommending the deletion of clause 16 of the bill. I can't do it until we vote clause by clause, but I want to give notice to the opposition that we listened carefully for a change.

[Translation]

Michel, do you hear me? We took into account the observations you made in the House of Commons regarding provincial jurisdiction, as well as the fact that this could be a sensitive point. So we decided to recommend to the committee that it vote against clause 16. We can't delete it now, because it's in the bill.

[English]

If people are interested—and I'm sure Mr. Roy and the officials will be referring to this—the intention was to allow federal prosecutors to prosecute cases in two major scenarios. When smuggling activity originated in the Northwest Territories, where the federal attorney general already had jurisdiction—and I want to underline that—and later involved one or more of the provinces or other countries, federal counsel was always coordinating the prosecutions. Where major organized crime activity was also involved and provincial prosecutors sought assistance or resources from the federal government, this also was provided.

That was the reason why the RCMP originally looked at diamond-mining operations in other countries, like Africa and the former Soviet Union, and found that rough diamonds are stolen by workers and used by organized crime as a medium of exchange. That was originally why we intended to leave the clause in: because in the Northwest Territories, federal prosecutors were always involved in those cases. Our view was that the amount of organized crime or transborder smuggling of rough diamonds would be very small and that this could raise some significant jurisdictional concerns; therefore, we decided that we would ask the committee to vote against clause 16.

The Chair: Thank you.

Ms. Eleni Bakopanos: Thank you.

The Chair: Before you begin—

Ms. Eleni Bakopanos: La coopération fédérale-provinciale.

The Chair: Okay. Let's get to work.

Before you begin, I want to thank the department for providing all the members of the committee and our research staff with briefing books. You have no idea what help that is, especially given the kind of schedule we have. This is something that we've been requesting for a while, and I know that it was your branch that put this together for us. We appreciate it very much.

Go ahead.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Madam Chairperson.

Of course we're delighted to be here this morning to have a chance to answer the questions that the members may have of us with respect to Bill C-51.

As you can well appreciate, there is no major theme in an omnibus bill; rather, what you have is a number of small things that have been requested for some time by a number of actors in the criminal justice system, which the minister instructs us to put together and to present to Parliament in the hope that Parliament will agree with the changes being proposed. I do not plan, Madam Chairperson, to make a statement of any sort. The Minister will do that when she appears on Wednesday.

• 0925

However, I understand that she would like us to answer your questions. I would, therefore, welcome those questions right away.

The Chair: Do you want to start, John?

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Could I?

The Chair: Go ahead. I'll give you about 10 minutes. We'll just go around the table.

Mr. John Reynolds: In regard to child prostitution, is there any reason we couldn't have a minimum jail sentence?

Mr. Yvan Roy: The amendment that we have in this package, Mr. Reynolds, is, if I'm not mistaken, clause 8. Let me give you a bit of the background so that you'll understand where we're coming from with this.

In Bill C-27 a couple of years ago, the Minister of Justice—Mr. Rock, in those days—presented an amendment to Parliament for the purpose of making sure that it would be possible for operations conducted by the police to be conducted by undercover agents. In regard to dealing with prostitution, the idea was that the police would refuse systematically—and, in my humble view, rightly so—to use underage prostitutes or young persons for the purpose of trying to catch someone in the act of trying to get sexual services from a person under the age of 18.

The wording that was chosen at the time did not completely satisfy some provinces, British Columbia in particular. The mayor of Vancouver and the province of Alberta asked us to change that wording for the purpose of making the prosecution even simpler than we had contemplated. That explains why you have clause 8 here. First, it is meant to address the issue of making the prosecution easier, and second, it is meant to ensure that the police continue to use decoy or undercover agents without those undercover agents being under the age of 18.

Already in the Criminal Code with respect to prostitution there is an offence of—I'll use the vernacular here—pimping with respect to a person under the age of 18. And if you're doing that for a profit and using violence, the law already provides for a minimum of five-year imprisonment.

There is nothing in this package that is proposed for the purpose of addressing more largely, more broadly, the issue of prostitution. Once again, the purpose is to put some language in the code that will facilitate prosecutions and not go further than that and look at issues such as the one that you're proposing, minimum penalties in prostitution cases.

Mr. John Reynolds: Okay. My other question is about organized crime. Do you really think the change you're making is going to make a difference? Should we not be looking at— People who are convicted of organized crime—

Mr. Yvan Roy: That is a difficult question.

Mr. John Reynolds: That's why I asked it.

Mr. Yvan Roy: I think you're referring here to clause 51 in the package. I was expecting one of your colleagues around the table to raise that issue, so let me try to give the explanation as to what we think section 125 will do, once amended—if it is to be amended by Parliament.

In order to give the explanation, I have to take you back to Bill C-95, which is another bill that was passed recently—in 1997—by Parliament for the purpose of giving the police the tools to fight organized crime—or at least to give them some tools.

When we looked at Bill C-95 and putting it together, we were instructed to look at whether it would be possible to, in our law, create an offence of being a member of, shall we say, organized crime. We conducted a fair bit of research on this, took advice from experts in the field, and came to a realization that it was not possible to do so.

• 0930

Instead, the minister of the day created what is called—and the definition is found in section 2 of the Criminal Code—the criminal organization offence. Now, this is a notion that was created for the purpose of giving the police the tools to fight organized crime; it does not create, as such, an offence.

In that section, you have two types of conduct that will constitute a criminal organization offence for the purposes of our law. One is section 467.1 of the code, which is the offence that says if you participate in the activities—there's a difference here between being a member of organized crime and participating in the activities of a criminal organization—an offence that would otherwise be punishable by a penalty of 5, 7 or 10 years, it would become an offence punishable by 14 years. That is what section 467.(1) is doing.

And then you have offences that are committed for the benefit or generally at the instance of a criminal organization.

Now I'm sure you're asking yourself, “Why is he taking me through all of this?” I'm getting to the point of what we're trying to do with 125 here.

The minister and the solicitor general, because this one is very much supported by the solicitor general, want the National Parole Board to be in the position to deny someone who has taken part in criminal activities that are linked to organized crime.

That is what section 125 will do once it is amended to include these words:

a criminal organization offence within the meaning of section 2 of the Criminal Code, including an offence under subsection 82(2).

What that does, Mr. Reynolds, is allow the state, the prosecution in most cases, to, in the case of someone who has been involved in money laundering, let's say, get the person guilty before a judge and a jury—if that's going to be the case—of the offence of money laundering. But, as such, money laundering does not require that you do it with the assistance of or at the instance of or together with a criminal organization; you can commit that offence without in any way, shape or form being linked to organized crime.

So the purpose of this is to say, okay, the person is going to be found guilty of that offence. At the sentencing stage, the law already provides, through Bill C-41, that the state, the crown prosecutor, can make a proof before the judge who is going to impose sentence to show the aggravating factors that are involved. And if this amendment is passed, the crown prosecutor will go before the judge and prove beyond a reasonable doubt that the criminal activity taking place—in our case, proceeds of crime—was done at the instance of or for the benefit of organized crime.

One you have a finding by a judge to that effect—and again, it's most probably going to take place at the sentencing stage—then you are captured by section 2 of the Criminal Code, and at that point section 125 kicks in, which means that accelerated parole cannot be granted in those cases.

So what the minister wants to do is to make sure that those who are doing offences that benefit organized crime do not get the benefit of accelerated parole. And that is done through a finding by the trial judge at the sentencing stage that the offence committed, for which the person has been found guilty, is an offence that was done for the benefit of, at the instance of, or together with a criminal organization, with “criminal organization” being defined as a group of five people doing a criminal activity together for the purpose of getting a profit out of it.

The Chair: Could I just assist a bit with this? I want to point out, John, particularly because you weren't here in the last term, that Andy Scott came before our committee knowing that we were doing a review of the Corrections and Conditional Release Act and essentially told us that he wanted to deal with this. He asked if there would be any objections to him going ahead with it in spite of the fact that we were reviewing the act. There were no objections and that's why it finds its way into the bill even though we're considering the act in full, and of course we would consider this amended section in those deliberations.

• 0935

Mr. John Reynolds: I just have one question to follow up on that.

If somebody gets an 18-year sentence, under normal conditions he could apply for parole after one-third. In this case, what would happen? Would you just explain to me, if accelerated parole not allowed, what percentage of that sentence he would have to serve?

Mr. Yvan Roy: Accelerated parole means that you can apply for parole after one-sixth of your sentence.

There is one case that has been in the public domain, and I don't think it's problematic to discuss that particular case in this forum. A person in Montreal, by the name of Mr. Lagana, was involved in the laundering of proceeds of crime. From the trial judge, he received a sentence of 13 years, I think. Given section 125 the way it is right now, he could benefit from that program and therefore could get—and did get—parole after one-sixth of his sentence. As you well know, the person is still under sentence until serving 13 years, but a portion of that sentence is served in the community and it starts at one-sixth. With this amendment, in the future someone like Mr. Lagana—not those who are already in the system, but in the future—will not be able to benefit from that program and will be serving at least one-third of the sentence.

I should point out to you that if you take a look at subparagraph 125(1)(a)(iv), which is already in the code, it's possible for the trial judge to impose in a particular case that the person serve at least one-half of the sentence, but that takes place at the sentencing stage; that's already part of our law. What we are doing by amending it further is ensuring that when that particular provision is not used by the judge, at the very least the person will serve a minimum of one-third of the sentence. They will not benefit from the—

Mr. John Reynolds: So they could still have the possibility of getting out on parole after one-third, even if they were involved in organized crime.

Mr. Yvan Roy: Yes.

My colleague, Mr. Ram, would like to say something.

Mr. Chris Ram (Counsel, Criminal Law Policy Section, Department of Justice): One of the effects of the framework that Yvan has just outlined is that there would be a finding on sentencing that the offender had been involved in organized crime or that there was a link to a criminal organization offence. The accelerated parole review being off the agenda when he does come up for parole at one-third also ensures that the record of criminal organization involvement will be before the parole board. He's eligible at one-third, but that doesn't mean he's going to get parole.

Mr. John Reynolds: Do we know what percentage gets parole?

Mr. Chris Ram: My understanding is that there are fewer than 10 offenders in the system right now that could conceivably have been affected by this, so I think the numbers aren't big enough to generate meaningful statistics.

Mr. John Reynolds: Fewer than 10 people from organized crime who are in jail?

Mr. Chris Ram: No—who would have been affected by the accelerated parole review amendment.

Mr. Yvan Roy: It is the hope of the government that law enforcement will be in a position to capture many more of these figures and that in the future there will be a possibility of having meaningful statistics. Bill C-95 is meant to allow the state—the police, for all intents and purposes—to have the tools to go after these figures.

And indeed, Mr. Reynolds, not only did the Department of Justice produce the bill and the Minister of Justice present the bill to Parliament, but the minister also instructed us to provide training for crowns, as well as police, in the use of Bill C-95. So a training manual is available and we have lawyers criss-crossing the country giving seminars for the purpose of telling people how powerful a tool they may have if they choose to use it.

Mr. John Reynolds: When you're looking at this, would you consider putting in a mandatory two-thirds sentence, say, for anybody who is convicted of doing organized crime work? In other words, would you consider taking the decision out of the judge's hands—or anybody else's? If you're sentenced and there's proof that you're part of organized crime, you must serve a minimum of two-thirds of your sentence or any figure higher than what you've done.

Mr. Yvan Roy: As you can well appreciate, when measures of that nature are considered, a number of options are put on the table. There is already, as I have indicated, provision in the law, which allows the trial judge to make a determination that you will have to serve at least one-half of your penalty. Remember also that when the persons are found guilty of murder, the penalties are very significant.

• 0940

Whether you can go from one-half to two-thirds to three-quarters to serving the full penalty— those, obviously, are options that are always under consideration. But you also have to try to balance this system, and in my experience, at least—and perhaps it's not the experience of others—judges, when they deal with organized crime figures, consider that to be an aggravating factor, which means that the sentence in most cases is more severe than it would be otherwise.

So the system adjusts—I guess that's what I'm trying to tell you—when it is dealing with some of those figures who are causing a great deal of trouble for our communities. Judges take that into account. The measures are there. But right now, no, the law does not say that two-thirds of the sentence must be served before you are released into the community or are eligible for parole.

The Chair: Thanks, John. Michel.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): In any event, Mr. Roy, we have had meetings to discuss Bill C-51 and you are aware of our concerns. I just want to make sure that I understand correctly, because I recall that, when the changes to the accelerated parole review were adopted, certain questions were asked and, according to the answers, they were to have covered a great many things, including money laundering.

In practice, there was the Lagana affair, which you explained very clearly earlier. I would just like you to clarify a few points related to clause 51 of Bill C-51. We'll do it by elimination. In proposed subparagraph 125(1)(a)(v), the words:

(v) a criminal organization offence within the meaning of section 2 of the Criminal Code, including an offence under subsection 82(2);

clearly refer to subsection 82(2) of the Criminal Code which, in turn, involves the making or possession of explosives on behalf of a criminal organization.

So this excludes money laundering.

Mr. Yvan Roy: May I answer?

Mr. Michel Bellehumeur: Yes, we'll proceed by elimination.

Mr. Yvan Roy: Okay. A criminal organization offence, by definition, has two essential elements: in the first place, there is section 467.1, which is participation in an organized crime activity; secondly, there is the other part of the definition, which basically concern individuals who commit offences for the benefit of organized crime.

When you go before a jury and you are charged with—

Mr. Michel Bellehumeur: The second case is set out in subsection 82(2)?

Mr. Yvan Roy: Not necessarily, no. It is much broader than that, and that's the reason we are brought to money laundering.

When you take someone to court for money laundering, it's not one of the essential elements of the offence, the fact that the accused has committed the offence for the benefit of organized crime or in an organized crime setting.

When the prosecutor is called on to demonstrate the elements of the offence to a jury, he does not need to demonstrate that element, because it is not part of the offence. Therefore, once the trial is over, once the jury has reached a decision to find you guilty of money laundering, no finding has been made with respect to an organized criminal activity. People who are doing money laundering are not covered from the start. They do become covered by this scheme when the Crown, at the sentencing stage, presents the aggravating factors to the court. This is provided for in section 724 of the Criminal Code. Do you want to stop me here?

Mr. Michel Bellehumeur: Now you are at section 743.6.

Mr. Yvan Roy: No, not necessarily. Section 743.6 is the provision which says that the individual shall serve half of his sentence, if the judge so rules.

Mr. Michel Bellehumeur: Okay.

Mr. Yvan Roy: During the trial, the judge will have to make a decision. He will receive the Crown's evidence and the Crown will want to prove that the money laundering was done for organized crime. Organized crime is defined in the Criminal Code as being at least five people working together for the purpose of deriving profit from criminal activity.

• 0945

Once this finding has been made, it is placed on the file. The judge makes his decision. He may, at this point, go on to the following stage by ruling that the individual must serve at least half the sentence in a penitentiary. If he does not do this, now that section 125 has been amended, the National Parole Board cannot review his case until he has served at least one third of the sentence. Now he will no longer be able to receive an accelerated parole review.

Mr. Lagana, for instance, benefitted from it. As a matter of fact, after having served one-sixth of his sentence, he was able to apply for parole. Since he met the criteria, he was able to benefit from it. If Mr. Lagana had to go through the filter that I am talking about now, if the Crown had established proof that the money laundering had been done for the benefit of organized crime, the law would have made it mandatory to transmit this information to the National Parole Board. With this amendment, the criminal can no longer benefit from the program which allows serving only one-sixth of the sentence; he must serve at least one-third.

If the judge had wanted to go even further, in this particular case, the 1997 amendment would have allowed him to require that he serve at least half of the sentence before any parole could be granted.

To sum it up, rather than going from one-sixth to a half of a sentence, you automatically go from one-third to one half.

Mr. Michel Bellehumeur: Without a judge having handed down a decision under article 743.6.

Mr. Yvan Roy: Without a judge having handed down a decision under article 743.6. However, a judge will have to decide about organized crime connections in this kind of case. This is why this will be done at the time of sentencing.

Mr. Michel Bellehumeur: And what evidence will have to be produced to get to that point?

Mr. Yvan Roy: This evidence must be beyond all reasonable doubt, but it can be established by less restrictive means than during a trial. I mean by this that during the trial, hearsay is not acceptable. During sentencing, evidence can be supported by hearsay. This is the way it will usually happen, of course we'll hear expert witnesses, police experts in the field who'll come before the court to describe the circumstances of the offence to satisfy the judge the crime was committed for the benefit of organized crime.

Mr. Michel Bellehumeur: Wouldn't it have been simpler to mention money laundering expressly among the exceptions?

Mr. Yvan Roy: It would have been simpler, but I am not sure it would have been correct. We can see that the definition of money laundering, under article 462.31, covers a range of possibilities that go far beyond mere organized crime activity.

Money laundering involves behaviour that will— I'll give you an example of the reverse: if I had stolen something and I asked you to get rid of it for me, this might constitute money laundering. And yet this is not participation in organized crime. But it constitutes receiving stolen goods. So, the definition is so broad that it covers possession of stolen goods and more. Had that been added, we would have covered an enormous number of things.

Mr. Michel Bellehumeur: Couldn't we have had a more focussed definition of money laundering, in the sense that applies to the Lagana case and to other lawyers or accountants?

Mr. Yvan Roy: This could have been possible.

Mr. Michel Bellehumeur: Quite frankly, this is more or less the reassurance that was given us regarding the fast-track procedure for serious crimes. We had spoken of all kinds of things, for example crime by association. I remember having spoken of money laundering during that meeting, where it was said that money laundering involved the whole matter of drugs, violence, etc., and this could be covered in various ways. We saw that as a matter of fact it was not covered. Lagana is a patent example of this.

I'm afraid, despite the affirmations and replies that you are giving us with so much assurance and good faith, that we're still off the track. People in organized crime indeed do have means to pay the best lawyers and they know the Criminal Code even better than we do, as MPs. Notwithstanding your professionalism, I think that they know it as well as you do and are able to find the loopholes.

The situation is clear. Everyone agrees that we have to do something about money laundering, that cases like the Lagana case should not happen again. Why don't we try to introduce tighter, clearer wording so that lawyers can no longer play games with a description or the evidence required under section 2? Why not give a clear definition of money laundering in the case of criminal organization offences or any other offences? Why don't we state it clearly in this section?

• 0950

What are you going to say in reply? This is a political matter?

Mr. Yvan Roy: I will give you a two-part answer. First, I think that the Solicitor General would be pleased to hear your suggestions along these lines when your committee reviews this bill in the near future.

Second, since I've been working in this field for several years now, I can tell you that drafting a definition that is both specific without being too restrictive is far from an easy task. With this amendment, we tried to deal with the most urgent problems first. Let us be frank. The most urgent problem is to ensure that cases like the Lagana case do not happen again. Let us do what needs to be done to deal with this problem quickly. That is the point of the operation. If it were possible to draft a definition that would be in keeping with what you want and what we want, I would be pleased to hear it. It is not as though we have not tried to do this.

Mr. Michel Bellehumeur: I will be quite candid with you, Mr. Roy. At our meeting, we discussed the Lagana case, and unless you have reexamined it and consulted other departmental lawyers, you seemed less than sure that the amendments would cover cases of this type. Today, you seem quite sure that they would.

Mr. Yvan Roy: I will tell you why, because I have thought about this since our meeting. I was saying that the Lagana case would not be covered by this amendment. For individuals who are already within the prison system, that was true and it remains true. What we are talking about today, namely that a judge may rule that an individual acted for an organized crime group, cannot be done retroactively. This will only be possible in the future.

Thus, when I was saying that cases similar to the Lagana case would not be covered, I was thinking about those for which there has already been a judgment, the 10 cases Mr. Ram was mentioning earlier. This amendment would allow judges to do this in the future.

I would say that in the context of the information and training process that has been implemented and which I mentioned in my answer to Mr. Reynolds, that is one of the aspects we are trying to make better known, both to police officers and to Crown attorneys. We want them to know that this provision exists and that they can use it as we suggest, and essentially that they can use a series of provisions that would produce this result.

However, between you and me, I am not sure that at the moment these provisions are very well known and are in fact being used. I'm not at all sure about that. We are trying to look after that.

Mr. Michel Bellehumeur: If I understand correctly, in order to really—

[English]

The Vice-Chairman (Mr. John Maloney (Erie—Lincoln, Lib.)): Excuse me, Mr. Bellehumeur. We'll have to move on. You've exceeded your time. We'll come back to you in the next round.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Mr. Chairman.

Thank you for appearing. I have just a couple of questions. Let me begin with clause 23, proposed changes to section 516 dealing with the remand of the accused prior to the bail hearing. My understanding of what this section proposes is that at the time the accused is arrested and remanded before a bail hearing determining the conditions of release, there can be, at the discretion of the judiciary, a non-communication order.

There are two considerations here. One, first of all—and I always raise it—has there been any thought on the presumption of innocence here? The idea that we're imposing conditions before there's been any kind of hearing whatsoever causes me some concern, and I'd like just some background on that.

Secondly, has there been any thought in regard to the spillover into the area of family law? That is, I think, of primary concern for many of the judges who have to deal with this kind of situation where there are, say, allegations of domestic abuse in a jurisdiction of zero tolerance, where the accused will almost surely be remanded—and I've been sitting on the custody and access committee with some of my colleagues here—and, then, automatically, there may be a family situation at home where the accused could be prohibited from communicating with his family.

So I have two questions: the presumption-of-innocence issue, and secondly, has there been consideration of the spillover into areas other than the criminal law area?

• 0955

Mr. Chris Ram: I think there are some concerns about that. Essentially there are three periods when an incident happens and someone is arrested: a period between the time he is arrested and taken into custody; the first appearance before a justice; and subsequently a bail hearing under section 515 of the Criminal Code. Right now under section 515 of the Criminal Code, if he's held in custody that justice can make a non-communication order. That is a judicial proceeding.

The justice can consider the presumption of innocence and the facts of the case. This extends that forward to the first appearance before a justice. We did not attempt to try to make some sort of an automatic statutory non-communication order that would cover the period between the arrest of the accused and his first appearance before a justice for that reason. It's necessary to have some judicial official consider the merits and demerits of ordering this person not to communicate with a witness or victim.

Mr. Peter Mancini: My point was just what we anticipate would be taken into consideration in the determination of that order.

Mr. Chris Ram: My recollection is that it's left essentially to the justice. It could be the potential for the accused to contact witnesses or victims. Also, as you say, there may be other family considerations. I'm not that familiar with that area of the law. But it could be whatever the accused or his counsel or the justice wanted to consider, I think.

Mr. Peter Mancini: Okay. That clears it up for me a little.

Perhaps I can move on to subclause 32(1). If you could help me with this I'd appreciate it. It seems to me that what we're doing in the proposed paragraph (b.1), where it says “shall consider any outstanding charges against the offender”, is limiting, to some extent, the judicial discretion, compared to the old section. Are we narrowing the concerns that the judiciary can take into account when accepting the guilty plea or dealing with the sentencing on the other charges?

Ms. Jodie van Dieen (Counsel, Criminal Law Policy Section, Department of Justice): I don't think the discretion has been narrowed. Currently in paragraph 725(1)(b), outstanding charges to which the offender pleads guilty can be taken into account on sentencing. Paragraph (b.1) allows the court to consider outstanding charges to which there has not been a plea of guilty where the factors articulated in the code are satisfied.

Mr. Peter Mancini: And is there any concern that, again, there's an infringement in terms of the accused's rights in the determination of sentencing, in terms of taking into account charges of which the accused has not been found guilty or has not pled guilty to?

Ms. Jodie van Dieen: Well, I think the criteria cover those concerns given that it must be on the consent of the offender and the offender has to agree with the facts relating to the charge, which have been described in open court. So it's a very public process—

Mr. Peter Mancini: Inclusive.

Ms. Jodie van Dieen: —and it's generally to the accused's benefit.

Mr. Peter Mancini: Thank you.

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Mancini. Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

Witnesses, I thank you for being here with us.

My opening question is more of a general one. The previous chair, Shaughnessy, answered this to some extent. Were you troubled at all by the fact that there is this pending CCRA review where we're going to be getting into significant detail? Does it trouble you at all that obviously in this particular bill you've already delved into that to some extent?

Mr. Yvan Roy: I think the important words are “to some extent”. It's very limited. The amendment we're talking about, which is the clause we have been discussing with the two other members is, I think, something that needed to be done.

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I think there is general consensus, if not unanimity, that having someone who has been involved in criminal organization offences being able to serve only one-sixth of his sentence is simply not the right thing to do. So by trying to fix this problem right away, there is hope that at least this will be taken care of, for what it is doing.

It may very well be that in the future this committee will recommend that much more be done. So be it. But at the very least, let's not give these people the benefit of what I think would be seen by a lot of people to be a loophole. “Let's close this one as soon as possible” is I guess what ministers are saying, and that's all.

Mr. Peter MacKay: Okay. And I agree with that. I assumed that was the reason behind it.

I have a more specific question referring to clause 22, amendments to the bail provision, proposed paragraph 515(6)(d).

In this amendment, for all intents and purposes you're removing subsection 5(4) of the Controlled Drugs and Substances Act from the list of serious offences punishable by life in prison, for which those offences the onus is reversed onto the accused to show why he or she shouldn't be released in a bail hearing.

I guess my question is, what factored into your decision to remove subsection 5(4), which, as you know, refers specifically to cannabis-related drugs? As well, why was the decision made to have the CDSA no longer require to prove why the accused should be granted interim release?

Mr. Chris Ram: Essentially, this is the correction of a legislative oversight. Paragraph 515(6)(d) refers to offences punishable by life, and subsection 5(4) of the CDSA is a five-year offence, not a life offence. To my understanding, it's just a drafting error.

Mr. Yvan Roy: We don't like to say it in so many words, but we're correcting a mistake.

Some hon. members: Oh, oh.

Mr. Chris Ram: One of the unsung functions of omnibus bills.

Mr. Peter MacKay: Mr. Lee would have picked up on this eventually, anyway.

Clause 6 refers to dice games.

Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): Careful, careful.

Mr. Peter MacKay: Careful?

This amendment would, I guess, move dice games from the list of lottery schemes that are completely prohibited to lottery schemes that are permitted. I guess this is where we're getting into a jurisdictional question, too—conducted and managed by provinces.

Where provinces or companies in particular that lobby for the inclusion of this, I guess I'd like to know what consultation process took place in this decision. Would the justice department be willing to table any correspondence, reports or presentations that were made to your department that factored into this decision?

I'd also like to know further, have the RCMP or law enforcement agencies conducted an analysis of the impact of basically lowering the stringency of these provisions?

Mr. Yvan Roy: This particular amendment is meant to be a very narrow one. You have pointed out, Mr. MacKay, that the amendment moves, from some games that are completely prohibited, dice games, so that they can be conducted in operations that are managed by provincial governments. Private companies are not allowed to operate this. Charitable casinos will not be allowed to conduct that kind of a game. It has to be under the strict control of the provinces in casinos run by the provinces.

By and large—and I don't think this is disclosing state secrets—there are some jurisdictions that have a particular interest in having that kind of a game available in their casinos, simply because they are competing with foreign jurisdictions.

To make this clearer, in southern Ontario there are some operations that have said, through the appropriate minister, that there was a need for that kind of a game to be available in order to compete with casinos in the state of Michigan, or in the state of New York.

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At the end of the day, it is left to the provinces to decide whether they want to include this particular game in the mix they make available at their particular locations. I do not know that, for instance, that the Province of Quebec will want to do this. I know that in Ontario, there is some interest in having that kind of a game available in order to compete with others.

In terms of consultations, yes, we have consulted with the provincial governments on both the Justice side and the Solicitor General side in those governments. As well, we've touched base with the RCMP.

There was a concern about the integrity of the game. You know and I know that traditionally those games were prohibited, because it was easy—

Mr. Peter MacKay: To load the dice.

Mr. Yvan Roy: —truly and simply—to load the dice.

By giving this to the provincial governments, one, we are convinced an interest in the provinces to make sure that the game is legitimate, and its integrity is protected— To my astonishment, as I now understand it, it's possible to put computer chips in some of those dice for the purpose of making sure that nothing untoward is done to them.

So there was a general feeling among everyone consulted that the integrity of that particular game could be protected. Therefore, it was proposed that the amendment be put before Parliament to see if it would be supported by most people.

I haven't seen or heard, from anyone, since that bill was tabled in the House, anything with respect to dice in terms of objecting, or, for that matter, supporting it. It's been, “Yes, it sounds like a good idea”—period.

Mr. Peter MacKay: Sort of innocuous.

Mr. Yvan Roy: Yes.

Mr. Peter MacKay: Can you tell me who initiated this change? Where did the original idea come from?

Mr. Yvan Roy: The original idea came from Ontario.

Ms. Shaughnessy Cohen: Al Palladini. He's a Tory.

Mr. Peter MacKay: Well, it's revenue-generating.

You talked about mostly Ontario and the proximity to the States being a factor, but I know there is a situation developing in my province of Nova Scotia with ITT Sheraton. I wondered if there had been any consultation with the Province of Nova Scotia in regard to this change.

Mr. Yvan Roy: As part of the consultations that took place, Nova Scotia was represented. There is no question about that.

Mr. Peter MacKay: Okay. Thank you very much.

The Vice-Chairman (John Maloney): Thank you, Mr. MacKay. Ms. Cohen.

Ms. Shaughnessy Cohen: Well, clause 6, and other clauses; I actually can't believe we have an omnibus bill that has economic development in it.

Mr. Peter Mancini: Neither can I.

Ms. Shaughnessy Cohen: And it quite does.

For instance, did you know, Mr. Roy, that in Windsor, Ontario, by legalizing games of dice there will be between 400 and 500 new jobs created? I say for Mr. Mancini's benefit that they're union-organized, CAW-organized jobs, that will pay anywhere between $40,000 and $60,000 per annum. Did you know that?

Mr. Yvan Roy: It will be a pleasure to pass on the information to the Minister of Justice.

Ms. Shaughnessy Cohen: Yes.

And did you know that this will not just put us on an even playing field with the casinos in Detroit but it will also give us a leg up? We will now have all the games that they will play in the casinos in Detroit. In addition to that, we have gun control and safe streets in Windsor.

You may not have known that, either, or thought of that.

Mr. Yvan Roy: I am generally familiar with gun control, yes.

Ms. Shaughnessy Cohen: So I want to say that on behalf of my community—and note that I have stepped down from the chair to do this, and that no one is listening to me other than you—

Some hon. members: Oh, oh.

Ms. Shaughnessy Cohen: —this is an excellent bill.

I want to say, though, that unfortunately, the Conservative government in Ontario, who complained for a long time in public that we hadn't legalized dice, failed to send a letter to us until last spring. I understand that immediately upon getting the letter, this was made ready and brought to Parliament by your department. Isn't that correct?

Mr. Yvan Roy: It is correct, Madam Chairperson.

Ms. Shaughnessy Cohen: You're a very good witness, sir.

Mr. Peter MacKay: She's leading the witness.

Ms. Shaughnessy Cohen: On the issue of international cruise ships, perhaps you could run this past us as well. I understand these amendments were very important to the Province of Quebec—is that correct?—as well as to the Province of Nova Scotia and the Province of British Columbia.

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[Translation]

Mr. Yvan Roy: It is true, Ms. Cohen, that the proposed amendments regarding cruise ships are designed to favour the Maritimes, Quebec and British Columbia, by allowing these cruise ships to continue to operate their on-board casinos.

Consultations showed that this could lead to significant economic activity in these regions, because cruise ships could then increase their business. In other words, there would be more passengers interested in going to Halifax, Montreal, Charlottetown, Quebec City or Vancouver, because of an amendment of this type.

If you're asking me to assess what that would mean in terms of economic activity, we have been told it means over ten or twenty million dollars. It is not negligible.

[English]

It is a rather important change to our law in order to allow these operators to have even more of those cruise ships in our waters, especially during the months of September and October, I'm told. So this is going to generate, we are hoping, some economic activity in those regions.

This type of amendment is very much supported by tourism offices across the land, especially in the areas where those cruise ships will be navigating.

Ms. Shaughnessy Cohen: Okay.

The other economic development aspect to this concerns the sections that have to do with diamonds and with precious stones. I take it this is in response to the fact that we now have an operating diamond mine in the Northwest Territories.

Mr. Yvan Roy: Yes.

Ms. Shaughnessy Cohen: Does this bring us in line with international concerns? Are there international interests that wanted to be sure, or assist us in being sure, that our laws were modern with respect to stones?

Mr. Yvan Roy: Mr. Ram has been following this issue more closely. I should probably let him tell you a little bit more about why these amendments are being made—if they are going to be passed in Parliament, of course.

Mr. Chris Ram: Certainly one of the major intentions was to ensure that such legal protections as can be enacted were in place when the new diamond mines in the Northwest Territories came on-line. Traditionally in this country the valuable minerals that have been produced have all been precious metals, and a lot of the provisions in the Criminal Code spoke in terms of precious metals, which would be gold, silver and platinum, and ores containing those metals. As soon as gemstones and certain other rare-earth elements are added to the mix, you need a broader definition.

One of the intentions of the amendments is to broaden the definition to ensure not only that diamonds are caught but also that any other gemstone that might be discovered in Canada subsequently—and there is some reason to believe there may be other deposits in Canada—will automatically be caught within the legislation once it's modernized.

I also looked into it when we were drafting the amendments, and some of the provisions haven't been looked at by Parliament since the turn of the century. There was an offence in the Criminal Code of possessing mica samples, which horrified Natural Resources when I pointed it out to them, because I have some in my office. I actually collect these things myself. This came as a bit of a surprise to us all. So that's being dispensed with.

As far as the controls that are actually being imposed on theft, trafficking and smuggling, there are limits to what we can do under the charter. The RCMP went on a fact-finding mission and looked at diamond mining in other countries and the potential for the use of these stones as a medium of exchange by organized crime. That is a potential problem. It's one that's been highlighted in the media. All we can do is create an evidentiary burden on people who are caught in possession of these things.

The law used to essentially say that if you were caught in possession of gold ore and you worked in a mine, you were presumed to have stolen it. That violates the presumption of innocence under the charter, and the Supreme Court had so found in one case. What the law will say, as amended, is that there is an evidentiary presumption that you stole it or that you were in possession of minerals obtained by fraud or theft or whatever that can be rebutted by the accused raising a reasonable doubt.

This touches on the third leg of the amendment, which is to essentially bring them into conformity with the charter.

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Ms. Shaughnessy Cohen: Mr. Roy, I have one more query.

As I have watched the trend of legislation over the last several years I have noted that the department is infected with a pernicious little virus that is moving us toward reducing the availability of jury trials for accused people in our country. I'm wondering if, in your view, there is anything in these amendments that would allow or further the cause of provincial crowns, provincial attorneys general, to reduce the availability of jury trials to accused people, in a general sense.

I'm thinking of hybridization of offences, which allows the Crown to elect down in order to prevent jury trials—or one result would be to prevent jury trials—or other efficiencies in the system that would reduce the right of an accused to a jury trial.

Mr. Yvan Roy: As you were asking your question, Ms. Cohen, I was flipping through the act, trying to remember if there is anything of the sort. I don't think there is anything.

Ms. Shaughnessy Cohen: That was my reading; I just wanted to say it on the record.

Mr. Yvan Roy: Putting us on notice.

Ms. Shaughnessy Cohen: Oh, I think you already are.

Mr. Yvan Roy: Thank you for this.

Ms. Shaughnessy Cohen: Thank you.

Those are all my questions.

The Vice-Chairman (Mr. John Maloney): Thank you, Ms. Cohen.

We still have a bit of time left, Mr. Grose. Do you have a quick question?

Mr. Ivan Grose (Oshawa, Lib.): No, I don't have a quick question, so—

Ms. Eleni Bakopanos: Ask it anyway.

Mr. Ivan Grose: All right, then. It will probably be a statement.

I cannot believe sane and sensible people are gathered here discussing the fact that casino or shipboard gambling is going to add to the economy. There's only so much discretionary money out there. Discretionary money is either going to come from racetracks or bars—or wherever the people are putting it now—or government's going to print more money so that they would have some more discretionary money.

This is crazy. Crazy! I can't understand it. How anyone could logically say that any kind of legalized gambling could add to the economy and add so many jobs is to me beyond comprehension.

If someone has an answer, fine.

The Vice-Chairman (Mr. John Maloney): Do you wish to comment on that last comment?

Mr. Yvan Roy: I certainly don't want to argue the issue—that would not be my place, and whether I agree or not is irrelevant, really—but what I need to point out, sir, is that these amendments, especially the one about cruise-ship gambling, is for the purpose of allowing those cruise ships that come from abroad. So what we're talking about here is bringing money from the States to Canada. To that extent, this is generating some new money for Canadians. That is the thinking behind this, that's all.

Mr. Ivan Grose: So you're not going to do the same thing to get Canadian dollars.

It's silly.

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Roy.

Mr. Cadman, a five-minute round.

Mr. Chuck Cadman (Surrey North, Ref.): Just for clarification, I understand that the cruise ships on the Alaska run, up the inside passage in B.C., already have casinos. Could you just explain how that happened?

Mr. Yvan Roy: There was a bit of a problem a few years ago on the St. Lawrence River. The Attorney General of Quebec at that time decided he was going to enforce those particular provisions. They sent in the police. They went on board, seized the casino, and ever since, the operators of those cruise ships have said that unless the situation is clearly made legal, they would not send those cruise ships on the St. Lawrence River.

My understanding is that it is less clear in British Columbia whether, one, those cruise ships are in Canadian waters, and two, if they are in Canadian waters— there appears to be a “tolerance”, shall we say. That would explain why this has taken place.

This would regularize, really, the situation by making sure it is well understood that it is legal to do so.

Mr. Chuck Cadman: Thank you.

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Cadman. Mr. Marceau.

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): Mr. Roy, I'm convinced that your work requires you to keep a close eye on parliamentary business and private members' bills. I'm convinced that you are aware of the fact that I tabled a bill, Bill 416, that focussed, among other things, on cases like the one involving Mr. Lagana.

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In that private member's bill, which contains only one clause, I mention an amendment that could be made to subparagraph 125(1)(a)(iv) of the Corrections and Conditional Release Act, which resembles to some extent the amendment that you are proposing in clause 51, in which I mention the following offence:

An offence under section 463 of the Criminal Code relating to an offence set out in paragraph (1)(e), (2)(f) or (3)(e) of schedule II—

which very specifically identifies cases of laundering proceeds of crime, in different pieces of legislation.

Mr. Yvan Roy: Section 463 of the Criminal Code deals with attempts, conspiracies and accessories.

Mr. Richard Marceau: Yes.

Mr. Yvan Roy: I am not sure that I am familiar enough with the other paragraphs to understand exactly what the change you are proposing would involve.

Mr. Richard Marceau: It identifies cases of laundering proceeds of crime in various pieces of legislation, for example the Food and Drugs Act, the Controlled Drugs and Substances Act and the Narcotic Control Act, among others.

Mr. Yvan Roy: So according to your proposal, in every case involving laundering proceeds of crime and laundering of drug money, individuals would be covered, whether or not their activity is part of organize crime.

Mr. Richard Marceau: No—

Mr. Yvan Roy: The little guy who sells two joints, collects the money and gives it someone else is specifically covered by a provision like that.

Mr. Michel Bellehumeur: This young guy who sells joints, is he charged under section 463?

An Hon. Member: That is another matter.

Mr. Michel Bellehumeur: It is already difficult enough to charge the person with simple possession.

Mr. Yvan Roy: No, but to get a better understanding of this amendment— Look, what we are afraid of is making a change that would be too broad without having done the appropriate consultations.

I answered one of Mr. MacKay's questions earlier by saying that this clause contains a flaw that we detected and that the government's objective is to make up for this flaw by waiting to proceed with the review of the Corrections and Conditional Release Act. So it is by carrying out a more complete review that we will be able to do things more adequately.

Mr. Richard Marceau: But when you want to fill a hole, you have to do it correctly, if not the water will continue to seep in. Would it be possible for you to quickly examine Bill C-416—

Mr. Yvan Roy: Of course.

Mr. Richard Marceau: —and give us your comment on how to improve it? A bill can always be improved. I know some people have trouble believing that, but that is the case.

Mr. Yvan Roy: I fully agree with you there. And if we have to do so, we will do it.

Mr. Richard Marceau: Okay, thank you.

Mr. Michel Bellehumeur: Just to wrap up the discussion on this matter, Mr. Roy, in keeping with what you are saying, I do not think that a young person who has sold two joints or who is in possession of something else would be charged with laundering proceeds of crime under the Narcotic Control Act or the Food and Drugs Act. I think that we agree on the intention of the legislator.

In the Narcotic Control Act, the Food and Drugs Act and the Controlled Drugs and Substances Act, I don't think we're targeting the high school kid with two joints of marijuana in his pocket. I believe that the purpose and objective of this legislation are quite different.

Now, Mr. Marceau's question was more along the lines of the following: Would it be possible, in clause 51 of Bill C-51—which already amends subparagraph 125(1)(a)(iv) of the Act—to add another subparagraph that refers explicitly to the Narcotic Control Act, Food and Drugs Act and the Controlled Drugs and Substances Act so as to include them as exceptions, like the others in the two subparagraphs? That's the question.

If we want to close this loophole, don't you think it would be a good idea to do it with the tools at our disposal rather than to bring further improvements later on, as you are saying?

Mr. Yvan Roy: I have two comments I'd like to make. In the first place, I think that the proposed amendment closes the loophole you are referring to, insofar as what we are targeting is organized crime.

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But organized crime does not just mean drugs. It also means telemarketing scams and car theft rings. There are an enormous number of criminal activities. Having organized criminal activity cover only drugs is restrictive, in my opinion. That was probably not the intention of Parliament, in my view at least.

My second comment concerns the view that we can send to Parliament amendments that are improper in form, based on the belief that we can rely on the Crown and the police to launch proceedings only in appropriate cases.

I for one prefer to ask parliamentarians to make amendments that do not require such heavy reliance on the discretionary powers of the systems' officers. They have sufficient opportunities to exercise their authority and their discernment already, without a piece of legislation—which we know has broader coverage than necessary—allowing them to determine when it is appropriate to take action.

The amendment we are proposing, in my view, affords the State, the prosecutor and the police the possibility of exercising their judgment. That much is clear. And so, if they decide at sentencing not to produce the evidence I spoke of, the court would not make a finding in that regard. They can therefore use their discretion.

But when this section is operative, it can only cover serious offences involving organized criminal activity, without wider application and without the possibility of feeling that one can choose justified cases from among a number of them.

Although I'm not exactly sure of all the ins and outs of the argument presented by your colleague, Mr. Marceau, this is what I'm afraid of when I listen to the statements being made here.

[English]

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Roy. Mr. Mancini.

Mr. Peter Mancini: I would like some very brief clarifications.

First, subclause 34(1) deals with the fine. I read the current section and the proposed section. Then, when I read the subject to—and I may just be missing something here; I just need clarification—it indicates that where the offence provision does include a minimum term of imprisonment, a fine can only be imposed in addition to that term and not as an alternative to it.

But I'm thinking—and help me with this—of, let's say, the summary punishment provisions. The standard one usually means six months or a $200 fine or both.

Does this impact on that? Does this take away the discretion of the court to impose a fine as opposed to a minimum period of imprisonment?

Ms. Jodie van Dieen: No. The discretion of the court is not taken away. There's still the option of imposing a fine in any case. However, where there's a minimum term of imprisonment—for example, one year of jail—the offender, at a minimum, has to get that one-year jail term.

Whether the court decides, in addition to that, to impose a fine as part of the appropriate total punishment, that's at the court's discretion.

Mr. Peter Mancini: But if there's a punishment that says in the code “a particular period of imprisonment or a fine”, the court still has the discretion to choose the fine.

Ms. Jodie van Dieen: Oh, yes.

Mr. Peter Mancini: Okay. I just needed that.

Mr. Yvan Roy: It's only when there is a minimum imprisonment period provided by law. Then you cannot substitute that for a fine and say, well, you're not going to get your year, but we're going to give you a very stiff sentence in terms of a fine.

No; you have to receive that one-year sentence. And then on top of that, the court can impose a penalty in the form of a fine.

Mr. Peter Mancini: Okay. Thank you for the clarification.

Thank you for coming.

I have to go now, Mr. Chairman.

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Mancini. Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

Just as a follow-up to this question of the changes with respect to cruise ships, I'm wondering if we could have tabled or if we could take a look at correspondence from the provinces, correspondence from corporations, and this Palladini letter that Ms. Cohen referred to.

The Vice-Chairman (Mr. John Maloney): Mr. MacKay, I wonder if those might be questions that might be put to the minister.

Mr. Peter MacKay: Well, then, she will just turn around, I suggest, and ask that the department do it. I mean, I can ask the minister—that's not a problem—but I suspect it will ultimately come back to these people.

Ms. Eleni Bakopanos: I would say it's a question of privilege.

The Vice-Chairman (Mr. John Maloney): Mr. Roy, do you have a comment on that?

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Mr. Yvan Roy: As you can well appreciate, the correspondence you're talking about has gone to the minister. I can't say yes, I can't say no, but that's certainly not my call.

I guess you will be asking the question of the minister tomorrow.

Mr. Peter MacKay: Okay. That's fine.

Just for the record, I think Mr. Grose raises a very significant point here. I don't see how the financial benefits are going to flow to this country having foreign cruise ships come in and make their lottery games available to Canadian citizens. Those games are not paying out, for the most part, they're taking money in. Those ships then turn around in Canadian waters and sail away with our money.

Mr. Chris Ram: It is possible, certainly, for a ship to go back and forth between Boston and Toronto, say, taking some Canadian passengers, but the provisions are structured to prevent them from taking passengers from one part of Canada to another and gambling at the same time.

Generally, the provision was set up in order to permit ships that are already coming into Canada to conduct gambling activities. The primary financial benefit, I think, that is believed to be derived from that will be that it will encourage them to stop in Canadian ports, or at least now allow Canadian ports to compete effectively with American ports in such areas as Seattle and Victoria.

Mr. Peter MacKay: So allowing them to stop in Canadian ports allows Canadians to get on, and play their games.

Mr. Chris Ram: No.

Mr. Peter MacKay: No?

Mr. Yvan Roy: This is the one thing that we hope these provisions will not allow. Riverboat gambling is not allowed pursuant to these changes. Far from it. It has to be from an international destination or departure place into Canada and then back. They're not to go back and forth on the St. Lawrence River, taking people in Mont-Joli to Quebec City to gamble, and then bringing them back to Halifax. No. It has to be an international destination. It has to be from outside of Canada.

So the way this is structured, it is basically for American customers who want to come to Canada. They will stop in Quebec City, they will stop perhaps in Halifax or Charlottetown or Montreal, they will spend some money there, and then they will go back to the United States.

So it's certainly not to take people on board and to travel with them within Canada. Then we would fall into the very trap you're afraid of. This is structured not to happen.

Mr. Chris Ram: The specific rule is that no gambling may take place within five nautical miles of a port at which the ship calls or is scheduled to call. One of the reasons that provision was put there was at the request of the provinces. They didn't want it to compete with their existing gambling operations.

Mr. Peter MacKay: Okay.

I have one final question, on subclause 9(1). I preface this by saying I agree that this is a positive change. This is the clause that extends the provisions for death within a year and a day. But there is one spin-off effect. I've seen this happen quite recently in the province of Nova Scotia.

A person was charged with aggravated assault and the victim was in a comma for almost two years. It was really bizarre; they prosecuted, and three-quarters of the way through the trial on the aggravated assault, the victim died.

Now, they were beyond the year and a day, unable to prosecute on a murder charge. This, for all intents and purposes, once the trial had begun on a lesser charge, would prevent them from then prosecuting on a more serious charge. Once an accused is prosecuted on the lesser charge, he or she cannot be charged with the more serious crime, even if the victim dies.

Mr. Chris Ram: I'm not an ex-prosecutor, and I'm not sure exactly when jeopardy attaches, but what prevents the laying of a more serious charge once a lesser charge has been proceeded with is double jeopardy, and that's the charter.

Mr. Peter MacKay: That is the argument, that it would be double jeopardy, but unless—

Mr. Chris Ram: The rule there is the charter. This simply removes the time limit to the extent permitted by the charter.

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Mr. Peter MacKay: But where, obviously, the penalty provisions are going to be lesser, for the lesser charge of aggravated, I'm just concerned that there are any number of scenarios where this in fact could happen. If, as a result of the injuries, the victim is in a coma for two, three, four years, and there's a prosecution for aggravated, or assault with a weapon, and then the victim dies, there can't then be a prosecution for murder, even if the death is directly attributable to the original act.

So it sounds kind of crass to say, but you prosecute somebody for that lesser charge and they get two years. I personally think it's offensive that you can't then proceed with a murder charge. I mean, chalk those two years up, for sure, but they should be getting life—on the instalment plan, I guess.

Mr. Yvan Roy: As you can well appreciate, that limitation is charter-driven.

Mr. Peter MacKay: Yes.

Mr. Yvan Roy: I'm not sure there is much I can do about that.

I think what you're going to have in the future, if this amendment is passed, is the Crown being perhaps caught in some cases. Once they have come to the realization that an offence has been charged, and the offence is charged—in this particular case, aggravated assault—then because of paragraph 11(b) of the charter, your constitutional right to a trial within a reasonable time, they cannot wait forever. So there will come a point where they will have to prosecute the charge.

Once the person has been found guilty of that offence, I'm afraid it's going to be extremely difficult, constitutionally, to try to prosecute again, this time for murder. The option, obviously, is for the Crown to not prosecute and wait to see what is going to happen with this particular victim, but again, we're caught at some point in time by paragraph 11(b), I'm afraid.

I think that's the reality of our law.

Mr. Peter MacKay: I know it's a perverse situation that isn't going to occur often, but—

The Vice-Chairman (Mr. John Maloney): Mr. MacKay, we're going to move on, due to our time.

Monsieur Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): For someone who is not a lawyer, it's fascinating to listen to the arguments around this table. It's instructive.

I would just like to understand something very simple to which Mr. Bellehumeur alluded at the beginning of our go-round. Did I understand correctly that he is proposing a one-step process, whereas the one being proposed here is a two-step process, that is, on conviction and on sentencing? Is this what you are proposing? I didn't understand what you said, but I would like to.

Mr. Michel Bellehumeur: I spoke several times.

Mr. Jacques Saada: The first time you spoke, when you mentioned section 125.

Mr. Michel Bellehumeur: The first—

Mr. Yvan Roy: Perhaps I could speak. Correct me if I get it wrong.

The amendment that the government is proposing in section 125 requires that a judge intervene after a person has been found guilty of an offence, for example money laundering. At the sentencing stage, the judge can rule that the offence was committed as part of organized criminal activity. So, it's a two-step process.

I believe the amendment that Mr. Bellehumeur and Mr. Marceau were talking about would be a one-step process. This would mean that committing a certain type of offence would in itself make a person ineligible for the attractive procedure set out in section 125.

Mr. Jacques Saada: I see.

Mr. Yvan Roy: If I understand their proposal correctly, the judge would not have to step in to rule on whether the offence was committed for the benefit of a criminal organization. It would be automatic.

Mr. Michel Bellehumeur: No, no, no, no. The judge still decides on the sentence. But if we were concerned about money laundering with respect to a given section, we would specify in the bill whether it applied. Then the offender would not be eligible for parole after serving one-sixth of his sentence. In real life, today, the judge who declares someone guilty and sentences him to 25 years does not have to say anything about when he will be released. In real life, that's not how it happens.

When Lagana was sentenced to 13 years in prison, the judge didn't consider that he could be released after serving one-sixth or one-third of his sentence. He was sentenced to 15 years in prison, that's it. The law, as it now stands, allows a fellow like Lagana to be released rapidly, after doing only one-sixth of his time; it's called an accelerated review.

The amendment that we want to put forward would apply in cases like Lagana's, not in the cases of the 10 individuals that are already in prison— A few minutes ago, you put words into my mouth and I didn't protest, but I realize that we cannot do anything retroactively about those who are in prison. It's like the Olson Affair; we can't go and arrest the guy retroactively. But in cases like that of Lagana, we could set out very clearly in the Act that the entitlement to accelerated release doesn't exist where money laundering is concerned.

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As for the judge stepping in, this would be much more complicated under the government's proposals than under ours, because the proof is more difficult to establish. It must be "beyond any reasonable doubt", as set out in the definition contained in section 2, etc. And what exactly is a criminal organization offence? It's a new creature. There is no guarantee that judge will give it a definition that is in keeping with the one we are given it today. Nor is there any guarantee that the National Parole Board will act the way we think it will.

According to the very personal experience that I have gained in the five years that I have been a member here, what we in our place think and what they in their place think, when they have a convicted person before them, can be two different things. Therefore, we should not take chances: we should spell out very clearly that we want to cover money laundering.

You can't make be believe that at the Justice Department, with all the lawyers who work there, Mr. Roy, you are not able to clearly and quickly say what we want to do about money laundering. That's impossible! That's impossible, Mr. Roy!

[English]

The Vice-Chairman (Mr. John Maloney): Do you wish to make a comment, Mr. Roy?

Mr. Yvan Roy: I don't think there's any need, Mr. Chairman.

[Translation]

Mr. Michel Bellehumeur: I have greater regard for the Justice Department than you seem to have, Mr. Roy.

An Hon. Member: —

[Editor's Note: Inaudible] —

Mr. Michel Bellehumeur: No, that's not right.

Mr. Yvan Roy: Thank you.

[English]

The Vice-Chairman (Mr. John Maloney): We've just about come to the end of our time. Are there any other quick questions from any member?

Mr. Grose.

Mr. Ivan Grose: I really enjoy being on this committee, because it's amazing how many times I agree with the opposition members.

MacKay brought up a point that I hadn't even thought of. Cruise ships operating in the Great Lakes, as soon as they get across the middle of the lake, with the exception of Lake Michigan—

[Technical Difficulty—Editor]— so if they, through Detroit, pick up passengers in Toronto and then go across to Syracuse, then your law does not apply.

The other point I want to make—and I think this is more important—is that I'm really, really disturbed by the fact that we're mixing up the parole board with the sentencing judge. They are supposed to be two separate entities. One should not operate with the other.

Thank you.

The Vice-Chairman (Mr. John Maloney): Mr. Roy.

Mr. Yvan Roy: I'd like to respond, if I could, Mr. Chairman. I think it's important that this be put on the record.

The scenario Mr. Grose is talking about on the Great Lakes cannot happen the way this amendment is structured. In order for the gambling to be legal under this amendment, the ship will have to go into international waters, and there's none in the Great Lakes. It's American waters or it's Canadian waters. It's not international waters.

This was done for that purpose. We don't want to have riverboat gambling, and that includes the Great Lakes. Those were the instructions we got from our minister, and that's how the deal was structured, for that very purpose.

Mr. Ivan Grose: That should make lawyers millions of dollars.

A voice: And there's something wrong with that?

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. Ram, Mr. Roy and Ms. van Dieen.

Mr. Yvan Roy: Thank you, Mr. Chairman.

The Chairman: We are adjourned now until Wednesday afternoon, at which time the minister will appear.

We anticipate doing clause-by-clause on Thursday. The bout that was scheduled for 10.45 a.m. today apparently has been adjourned until later in the day.